Greenbelt Cooperative Publishing Assn., Inc. v. Bresler

PETITIONER:Greenbelt Cooperative Publishing Assn., Inc.
RESPONDENT:Bresler
LOCATION:17th Judicial Circuit Green County Alabama Jury Commission

DOCKET NO.: 413
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 398 US 6 (1970)
ARGUED: Feb 24, 1970 / Feb 25, 1970
DECIDED: May 18, 1970

Facts of the case

Question

  • Oral Argument – February 24, 1970 (Part 1)
  • Audio Transcription for Oral Argument – February 24, 1970 (Part 1) in Greenbelt Cooperative Publishing Assn., Inc. v. Bresler

    Audio Transcription for Oral Argument – February 25, 1970 (Part 2) in Greenbelt Cooperative Publishing Assn., Inc. v. Bresler

    Warren E. Burger:

    Greenbelt Cooperative Publishing against Bresler.

    Mr. Chasanow, you may proceed whenever you’re ready.

    Abraham Chasanow:

    Mr. Chief Justice, may it please the Court.

    The petitioners in this case contend that the evidence is constitutionally insufficient to support the judgment and as a basis for that contention, they refer to three of the 45 exhibits which were introduced by the respondent which the trial court instructed the jury it was to consider and which it did in fact consider.

    Now, some of those exhibits are contained in the printed record, others which are not as important as the major exhibits are in the transcript.

    But the Court of Appeals specifically made mention of the fact that in addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in an unethical trade, had been guilty of skullduggery, had had legal proceedings started against him for failure to make construction, corrections in accordance with county standards.

    These allegations were injurious to Mr. Bresler and his business as a contractor and were libelous per se.

    The Court had also previously referred in its opinion to another article which was published prior to the three foregoing articles.

    On April 22, 1965, before the blackmail articles and before Mr. Bresler became a candidate for comptroller and that was headlined, City Battles Bresler on Two Fronts.

    There was a sub caption court suit, it was written by petitioner Skolnick and it falsely alleged that the city and Bresler will also be at odds this week when the suit filed by the city against Ivy Homes, Inc. and Boxwood Village Inc. comes before the Circuit Court.

    John M. Harlan II:

    Do you think the disparities are characterized [Inaudible] rather than that the Court of Appeals to think that Bresler [Inaudible] charged with the blackmail charge?

    Abraham Chasanow:

    No, Your Honor, we do agree —

    John M. Harlan II:

    The evidence is all the way through it with some of these other matters because as I read the opinion, the essence of it was the blackmail charge?

    Abraham Chasanow:

    We do not dispute the fact that this was the principle charge but I’d like to point out that in the second blackmail article for example, there was the word skullduggery and when the — Mr. Skolnick was asked on the stand about the word skullduggery, he said, this is the word that the reporter used in the article.

    When the reporter testified for the petitioners, she said, I did not use that word, that was inserted and as frequently happens.

    Now this was a change and this was what the Court of Appeals also said was intended to impute dishonesty on the part of Bresler.

    Byron R. White:

    What did the trial court refer to in instructions to the jury?

    Abraham Chasanow:

    The trial court specifically said of course that the jury should consider all of the articles in evidence and also instructed the jury that it was to consider the entire context.

    Now, I emphasize that because one of their principle arguments says that the word blackmail was taken out of context and it didn’t mean what it said.

    Well, first, they had taken it out of context but publishing it as a caption in the first article.

    Secondly, the reporters both said that they had not published all of their notes concerning the meeting but that they had used the word blackmail.

    The second reporter, the reporter who wrote the second article said, I selected out the word blackmail to show it was Mr. Herling’s word.

    But she said, I didn’t use all my notes and when I asked her why she selected out the word, she said, well, it had been used, the word the week before and I felt it was proper to use it again in the article.

    The Court of Appeals makes one other important point and that is that these people —

    Byron R. White:

    Yeah!

    But I —

    Abraham Chasanow:

    I’m sorry sir.

    Potter Stewart:

    Did the Trial Court refer specifically to some document?

    Abraham Chasanow:

    Oh!

    Yes.

    Abraham Chasanow:

    The second blackmail article, exhibit 2 in the record.

    Byron R. White:

    What else?

    Abraham Chasanow:

    It referred to the blackmail article — well, actually the Court said, it was not going to comment particularly on the facts but just briefly said what the — what some of the witnesses said, but it didn’t go into detail on the facts itself.

    Byron R. White:

    They just and in its instruction to the jury as far as any particular document is concerned, it only referred to the blackmail article?

    Abraham Chasanow:

    No sir, as a matter of fact, I don’t recall that there was specific —

    Byron R. White:

    That’s alright.

    Abraham Chasanow:

    I’m sorry sir.

    The Court of Appeals made one other point which is important to this issue.

    To distinguish it from other articles, which are published by a newspaper in which intemperate statements are made.

    It said that there — this was not a disinterested or impartial publishing of a report of what was said at a public meeting and it pointed out that the people who had made the statement, there was a relationship between them.

    The Court said specifically — I’m sorry.

    Oh!

    Yes.

    The Court repealed — referred and I quote, “The close connection between the Skolnicks, Mrs. Bergemann, Mrs. Rosetti and Mr. Herling, those to whom the word blackmail was attributed, Mrs. Sucher and Mrs. Williamson who wrote the articles and Charles Schwan, the President of GHI and the principal opponent of Bresler on the high school and zoning issues.

    Now, I think it might be, well, at this point —

    William J. Brennan, Jr.:

    Excuse me, Mr. Chasanow, may I ask?

    Do I understand that the respondent concedes that he had the burden of satisfying the New York Times test to get a recovery?

    Abraham Chasanow:

    We did concede that, Your Honor, I mean for a purpose to void and the Court of Appeals said, arguendo.

    William J. Brennan, Jr.:

    Well, I’m asking, but the respondent does concede the judgment sustains only if it satisfied The Times standard?

    Abraham Chasanow:

    May I make an exception to that, Your Honor, I think that this question to public official which would — has never been clearly defined is an important issue in this case in this respect that their only constitutional defense was that Bresler was a public official.

    The evidence showed that at the time of the first two series of articles, Bresler was a member of the House of Delegates from Montgomery County, a different county, not Prince George’s County.

    There is no mention in any of the 45 exhibits that Bresler was a member of the House of Delegates and none of the articles pertained in any way to his official conduct which is emphasized in New York Times versus Sullivan.

    Now —

    Warren E. Burger:

    What difference would that make, Mr. Chasanow —

    Abraham Chasanow:

    Yes sir.

    Warren E. Burger:

    — if he is a public official?

    Must they identify him each time by his office in order to bring themselves under the Times and Sullivan rule?

    Abraham Chasanow:

    No sir, I say this because normally, reference is made to official conduct which has to identify the official.

    This case has nothing to do with official conduct and they didn’t even think that they were — there was any privilege attached to the fact that he was a public official because they didn’t mention it.

    Even the article was a published fact that it was going to be announced that he was to run for state comptroller, that governor, later Vice President Agnew had asked him to run.

    Abraham Chasanow:

    In that article, there was no mention of the fact that he was a member of the House of Delegates.

    It had nothing to do with this case.

    We say they are using this just as a cloak in order to say he was fair game because he happened to be a member of the House of Delegates.

    William J. Brennan, Jr.:

    Well reading the — what I must confess a rather confusing instructions of the trial judge particularly on two occasions as I read it, the jury was called back and given rather explicit instructions as I understand it quoting verbatim not only from Sullivan but also from Garrison and from Rosenblatt.

    Abraham Chasanow:

    Yes sir.

    William J. Brennan, Jr.:

    And that’s why I asked you how — this case certainly was tried wasn’t it, on the premise that the respondent recovered only if he satisfied the Times malice test?

    Abraham Chasanow:

    Yes, sir, that was the specific instruction —

    William J. Brennan, Jr.:

    And are we then to regard that the issues that we have to decide as on the premise that this is a case within the Times-Sullivan requirement?

    Abraham Chasanow:

    Yes, if Your Honor will draw the distinction, Mr. Justice Brennan, between the Sullivan case and I’d like to point that in my brief, I have indicated there are numerous exceptions.

    One I’d like to mention particularly, in Mr. Justice Black’s dissenting opinion, in the Butts case, he referred — I’m sorry, New York Times rather, concurring opinion — a separate concurring opinion, he referred to New York Times as an outside agitator.

    In the posture of the case, here was the New York Times facing a hostile and prejudiced community which — in which they could hardly hope for a fair trial.

    The respondent in that case, Commissioner Sullivan was a resident of Montgomery County, he was tried by a jury composed of residents of Montgomery County.

    He was attacking this foreign newspaper which was coming in and trying to tell them what to do.

    We have actually the inverse situation in this case.

    Mr. Bresler was the foreigner, he was the outsider.

    He was coming into Greenbelt.

    Now, in order to put this case in proper perspective, I’d like to mention one thing that the Court of Appeals noted.

    The respondent — the petitioner Skolnick was a member of this organization identified as GHI Greenbelt Homes which had once owned the land in controversy plus some 300 acres more.

    The federal government had sold that land together with the house in Greenbelt to this corporation and said, “We want you to control the development around it.

    So we’re selling you this land at a low price.”

    Instead of developing it, they took a quick profit, they sold it.

    Then they realized that they might have made a mistake that somebody else was making the profits that they might have made and then stepping in the first blackmail article, one of the councilmen said, and he was a member of GHI, how much profit is he going to make?

    This was a burning question.

    The other was that Mr. Bresler and his associate had plans which were interfering with their own plans, for example on this matter of the townhouses.

    Parcels one and two were adjacent to Greenbelt homes property.

    They were fighting, the townhouses on that — those parcels because the fact, they were going to build their own townhouse.

    As a matter of fact, they’ve built there as in Bresler hasn’t built a single townhouse on parcel one and two.

    Then also, they were going to tell the school board where to put the school.

    Now, the school board planned a high school and two other schools and they said, we don’t want the high school next door.

    We want you to build a high school on parcel 15 which was remote and much more expensive which was next to the beltway which was undesirable for a number of reasons and even filed suit against the school board to prevent them from building the school on parcels one and two.

    Abraham Chasanow:

    They were also saying to the Park and Planning Commission which was the official professional planning organization for the entire county, we don’t want you to zone this property for townhouses.

    Now, they were trying to dictate even though they had once owned and controlled this property, they were trying to dictate how this property was going to be developed and this is a conflict.

    These were amateur planners who were trying to tell the professionals what to do.

    I think that in order to recognize the posture of this case, let me jump to the articles which start with the announcement that Mr. Bresler was going to run for comptroller.

    I had not realized until recently —

    John M. Harlan II:

    It is hard to escape the impact of New York Times, that you have to show that Mr. Bresler was neither a republic official nor a public figure, the later by virtue — the majority in Butts [Inaudible]

    Abraham Chasanow:

    Well this — well, let me say this, we had felt that actually Butts was a dominating case because we felt that he was not really a public official at least as it had been previously defined in other cases by this Court.

    He didn’t come within any categories of St. Amant or a commissioner as in New York Times or deputy sheriff or any of the other categories and this Court has specifically said that we’re not saying how far we’re going to go and we certainly won’t go all the way down the line.

    Byron R. White:

    What about General Walker in the —

    Abraham Chasanow:

    As a public figure?

    Byron R. White:

    Yes.

    Abraham Chasanow:

    Well, General Walker was a nationally known figure, no question of this.

    The Court of Appeals, they couldn’t comment it, that they would not have found Bresler to be a public figure.

    Now, I’d like to make this clear.

    We did not —

    Byron R. White:

    What?

    What was that?

    The Court if Appeals —

    Abraham Chasanow:

    The Court of Appeals said that they would not have found Bresler to be either a public official or a public figure but they said arguendo since the trial court had instructed the jury on the basis of both public official and public figure that the question is really academic.

    But, Mr. Bresler —

    Byron R. White:

    Well, are you arguing here — you’re arguing here then that even if these instructions don’t pass muster under New York Times or even if the evidence is insufficient to prove malice under New York Times that you’re nevertheless home free on a non-New York Times basis because this isn’t a New York Times case, is that your position —

    Abraham Chasanow:

    I think that would be one aspect in view of the fact that there are —

    William J. Brennan, Jr.:

    Well, if it’s not a New York Times case, then actually that principle doesn’t apply and is there anything that this Court’s ever said what the federal constitution does about a state’s libel action?

    If he’s not either a public official or a public figure, why is the case here at all

    Abraham Chasanow:

    Well, that’s a question I asked.

    Now, let me say this —

    Byron R. White:

    Are you asserting here that — you don’t concede here then I take it that this isn’t — that this gentleman was a — was either a public figure or a public official?

    Abraham Chasanow:

    He was a public figure in Greenbelt because the newspaper made him one.

    Byron R. White:

    Well, then do you concede that the New York Times rules apply to him?

    Abraham Chasanow:

    I don’t think it would apply to this entire case Mr. Justice White for this reason.

    Byron R. White:

    Well, it’s only one case, one figure?

    Abraham Chasanow:

    Yes sir.

    But I’m saying that there are some of these libels which had no application whatsoever to as — his activities as a public figure.

    For example, the accusations that there had been suits filed against him for violation of county building standards.

    This had nothing — this was a private enterprise, this had nothing to do with the public issue with — which they were emphasizing land and zoning and we think that it would be carrying the public figure concept too far.

    Byron R. White:

    What about skullduggery and blackmail?

    Abraham Chasanow:

    Again, we don’t think that those would apply.

    We think that —

    Byron R. White:

    Well, then you say that New York Times has no relevance to this case here?

    There’s no applicability to this case, they don’t — if it doesn’t apply to that, that those statements about this gentleman, you’re saying that he just isn’t a — either a public figure or a public official.

    Abraham Chasanow:

    I don’t think New York Times does apply.

    I think that if there’s any application it might be —

    William J. Brennan, Jr.:

    But you certainly made no objection —

    Abraham Chasanow:

    No sir.

    William J. Brennan, Jr.:

    — as I read the instructions correctly.

    I think you were party weren’t you, you tried this case?

    Abraham Chasanow:

    Yes sir.

    As a matter of fact I —

    William J. Brennan, Jr.:

    And you were party to those supplemental instructions which I mentioned to you earlier that borrowed in terms from the New York Times a series of cases to instruct the jury, not only didn’t object to it but as I understand it, you participated in that, didn’t you?

    Abraham Chasanow:

    Yes sir because we wanted the case to go to the jury —

    Byron R. White:

    Then, how can you tell us now that this case doesn’t involve the application of New York Times principle?

    Abraham Chasanow:

    I was in effect assuming arguendo because I wanted the instructions of the jury to be as broad as possible.

    I did not want any decision to rest on any narrow definition and the Court of Appeals said the same thing.

    Byron R. White:

    Well, you do now though apparently?

    Abraham Chasanow:

    What’s it?

    Byron R. White:

    You would like to now though?

    Abraham Chasanow:

    Only insofar as this Court itself has narrowed.

    For example, in New York Times, the Court said about eight times that this referred to the official conduct of a public official.

    Then — there’s nothing to do with the official conduct of Mr. Bresler.

    So we say if New York Times applies, then perhaps, it’s just as Goldberg’s statement which says it doesn’t apply to the private activities of a public official.

    Byron R. White:

    Well, now you say he is a public figure in Greenbelt and he wasn’t at that time?

    Abraham Chasanow:

    Yes, sir, we couldn’t, we couldn’t deny it.

    Byron R. White:

    And in what respect was he a public figure?

    Abraham Chasanow:

    The fact that they had made him one, as one who was participating — well, I’d have to go back to 1934 — I mean, 60 —

    Byron R. White:

    Well, I would suppose that these are — some of these allegations are certainly related to whatever it was that made him a public figure, namely his activities in the construction business and his relationships with the county board.

    That’s what made him a public figure.

    Weren’t these allegations relate to his — the conduct of his business with the county?

    Abraham Chasanow:

    No sir, I think I could point out more clearly what made him a public figure.

    In 1964 on May 7 when there was some dispute, some discussion of the council, the News Review published a report that the council and the audience decided it made much more sense to it, stop attacking each other and concentrate on a common target, Bresler who wasn’t there and that was when they decided that they had to have a scapegoat because Bresler only owned a minority interest in these properties.

    He was not the major owner.

    There were others who owned more of an interest than he, but they had to have a name and his was a name that was selected.

    They were — this was followed up by the group sponsored by Greenbelt Homes.

    Mr. Schwan who was president, in which they announced on April, 8, 1965 that the saved Greenbelt Group gets its officers a name CFPG and they formed this organization with Mr. Schwan with Mayor Smith with Albert Herling who made one of the blackmail accusations with Mrs. Skolnick and then on April, 22, they announced not only a citizenship assistant wide — a citywide membership drive but had an article, City Battles Bresler on Two Fronts.

    He was singled out by the News Review and that was when they made the false allegation with the subtitle court suit that the city and Bresler will be at odds.

    Now, Bresler was not a defendant in that case and they knew it.

    Even later, on May, 6, after there had been a hearing and after the Court had issued an order against Ivy Homes, Inc. in which Bresler had no interest whatsoever, this was what the News Review said, “At a hearing held two weeks ago, a court order was issued to the builders of Boxwood, another Bresler development.”

    Bresler had nothing to do with that development to which the court urged, but they wanted to feature his name.

    The exhibit showed that they constantly featured his name.

    This is like the man who pleaded for leniency on the ground that he was an orphan after he had shot his parents.

    They had made him a public figure and they were using this.

    They were using the public official defense even though they knew that there was no relation and there was no mention in the articles.

    But getting through the time when they announced Charles Bresler to run for state comptroller on June, 9, 1966, and this is where we get into the question of malice.

    Now, they point out that this lawsuit that was filed about Mr. Bresler was subsequent, it had nothing to do.

    But taking the chronology —

    Hugo L. Black:

    Is this — he was charged from your standpoint you just made?

    Abraham Chasanow:

    I’m sorry sir.

    Hugo L. Black:

    Is this the charge to which you referring to[Inaudible]

    Abraham Chasanow:

    No this was after the blackmail charge.

    Hugo L. Black:

    What?

    Abraham Chasanow:

    After the blackmail charge, there were other defamations.

    Hugo L. Black:

    Which one do you consider was the worst?

    Abraham Chasanow:

    We consider that the blackmail, skullduggery, false reports of lawsuits for violation of building standards which damaged him as a builder, those were probably the most serious.

    There were other articles about possible corrupt influence on the school board in which his name was mentioned in connection with the suit against the school board.

    He was not a party to the case but they mentioned — they featured his name.

    It’s hard to say which draw broke the camel’s back but we thought there was an accumulation which certainly —

    Hugo L. Black:

    Are you sure that the accumulation broke its back?

    Abraham Chasanow:

    It certainly made him the most hated man in Greenbelt.

    I don’t think there’d be any dispute about that and we think that the accumulative effect of these articles, even those which were not necessarily libelous per se, which were intended to and did in fact damage him, but describe it to indicate the process.

    They announced he was going to run for state comptroller on June 9 and that’s when they have the article which had several false statements and this time, in that article, he was identified as a builder.

    Hugo L. Black:

    As a what?

    Abraham Chasanow:

    As a builder.

    Not to mentioned as a member of the House of Delegates, but as a developer and builder.

    It said he is currently faced with a series of legal actions instituted by the city of Greenbelt and referred to this suit which had been dismissed almost a year before and then also that false report that a number of homeowners in Lake Crescent Parks with developed and started legal proceedings against him.

    Warren E. Burger:

    Well, if they had said in the article builder and prominent political figure or builder and political leader, would then — you’d have no objection to it?

    Abraham Chasanow:

    No sir.

    I don’t believe that it did.

    Warren E. Burger:

    If they did, if they did?

    Abraham Chasanow:

    Oh, I’m sorry sir.

    Warren E. Burger:

    You seem to be making a point of their omission of his political affiliations.

    If they said builder and political figure, builder and political leader, builder and member of the House of Delegates or whatever he is called there, would that make it alright?

    Abraham Chasanow:

    It not — would not be the governing factor but I think it would at least if they were saying we have the right to criticize a candidate for office, there certainly might be some reference to the fact that he does hold the political office.

    If there was a question he was qualified for that office, may be there should be some question about it but we don’t contend this is a major premise.

    We merely wanted to point out that this was damaging as we alleged to his reputation as a builder, his violation of county building standards had nothing to do with any public issue.

    Warren E. Burger:

    Well, suppose the governor for example coming to the end of a session of legislature announces publicly, a speech or something that if the legislature doesn’t do certain things, he’s going to call him back in a special session.

    Then some member of the legislature makes some statement to the press that the governor is engaging in blackmail against — do you think that’s libelous per se?

    Abraham Chasanow:

    No, sir, I think there is a difference though.

    There had been articles published about the time.

    There still are, there was one in this morning about bribe — relating to bribery on zoning in Prince George, this had been a burning issue in Prince George’s County and Virginia.

    The people in Greenbelt were very aware of this.

    Now, to them, the fact that somebody was threatening to prevent the building of a school, I would think would be much more serious than just bribing some official with a couple hundred dollars.

    Abraham Chasanow:

    The jury obviously felt that they intended to accuse him of blackmail.

    As a matter of fact, Mrs. Skolnick when asked, did you believe that — or did you intend to accuse him of blackmail or did you think that the article — that the statements were intended to accuse him of blackmail were proper, she said yes, in the context of the meeting they were proper.

    There was no question that they intended to defame him.

    These were not someone whom the News Review was reporting, these were their own people making these statements so the News Review could publish them and it was intended to inflame the people to the point where they felt he had committed a crime.

    I certainly think that anyone who would stop the building of a school would be verging on something criminal particularly when they themselves in their brief mention coerced and threatened.

    This is what the general public feels, this blackmail, coercion and threats.

    I think the whole posture of the case that the fact that at that meeting, they read an inflammatory statement to begin with by Mr. Schwan and then the statements were made indicate the whole purpose was to cause these inflammatory statements to be made so they could publish them and republish them the following week when Mr. Herling was a member of that group, made the blackmail statement.

    Thurgood Marshall:

    Is it true that there was no evidence of pecuniary loss?

    Abraham Chasanow:

    No, we did not claim any pecuniary loss because how can we prove that people would not buy any of the houses because he wasn’t building according to county standards, there is no way of proving that Your Honor.

    Thurgood Marshall:

    Did the jury gave 5000 —

    Abraham Chasanow:

    Yes sir, they felt I’m sure that there had been pecuniary loss as well as —

    Thurgood Marshall:

    Well, obviously the jury didn’t agree with you that he’d been made out as the worst person in the county?

    Abraham Chasanow:

    Well, I think they were conditioned by the statements made about this poor newspaper.

    I think that there might have been a lot greater, in fact, my discussion with a couple of jurors later indicated that it could have been a good deal more.

    I think the jury —

    Thurgood Marshall:

    Of course, your discussion with the jurors was not before us I hope?[Laughter]

    Abraham Chasanow:

    I’m sorry sir, but I think that they tried to be temperate.

    I think it indicated that they did reach what they felt was a verdict fair to both sides.

    We think that this whole pattern and I’m sorry that the exhibits are not in chronological order indicated that they were leading up to, as a matter of fact, the filing of the suit against Mr. Bresler which was an absolutely privileged action was followed shortly after the announcement of his candidacy and we felt that this whole pattern of announcement week after week with a combination of a suit and the misrepresentation as to the purpose of collecting the money for the suit was an indication that they had intended to damage him all the way through that this was a continuing action.

    We think that obviously the jury was convinced that they intended to accuse him of blackmail and that is what a layman reading the article would have felt, particularly when there was no reason to publish the caption blackmail unless they wanted to invite attention to the fact that he had been accused of blackmail, that he was a criminal.

    I thank you.

    Warren E. Burger:

    Thank you, Mr. Chasanow.

    Mr. Clark, you have nine minutes left.

    Roger A. Clark:

    Thank you, Mr. Chief Justice.

    I would just like to comment briefly on Justice White’s question about the instructions.

    I think it’s very clear from the instructions, Mr. Justice White that the trial court singled out only the blackmail article.

    In fact, he referred to it three times in his instructions and did not refer to any of the other articles which the only other article —

    Byron R. White:

    Except generally?

    Roger A. Clark:

    Except generally, the only other article that he relied on —

    William J. Brennan, Jr.:

    He told the jury to consider all 45 exhibits.

    Roger A. Clark:

    That’s correct.

    Potter Stewart:

    [Voice Overlap] before the jury and so we have no idea what the jury thought was of —

    Roger A. Clark:

    I think that you — from the — reading the instructions though, you will see that the focus of the case, and so only the focus of the Court of Appeals’ opinion is on the term blackmail and that was the — you get that clearly from reading the joint extract, you get that clearly from reading the opinion of the Court of Appeals.

    Potter Stewart:

    Insofar as those two courts went but it was the jury that decided the factual issues and awarded the damages and there’s just no way on earth to know what they might have felt was crucial?

    Roger A. Clark:

    That’s right Your Honor except that there’s only one other article in issue about which there was evidence that it was factually inaccurate. Not just one about the homeowners’ proceedings which is just a really piddling inaccuracy when you take it against the fact that they knew in the way they reported it.

    This reference in the instructions to the blackmail I think is helpful in answering the question, the point that you made Mr. Justice Brennan about the explicit references to New York Times at the end of this — at the end of the Court’s instructions.

    The Court instructed that the jury that — going to the factor of truth, there was no contention in this case.

    It is conceded by the defendants that these allegations were not true, that Bresler committed the crime of blackmail, that Bresler was guilty of blackmail.

    So in the background of that reference when the Court after it instructed the jury that malices, ill wills, spite or hostility —

    William J. Brennan, Jr.:

    Well now, on that, didn’t the — if jury as I read this, like it came back twice and on the second occasion, the judge — is that right?

    Roger A. Clark:

    The second is —

    William J. Brennan, Jr.:

    Yes.

    Roger A. Clark:

    It is essentially right as the judge instructed after the lunch break.

    The jury hadn’t been out.

    William J. Brennan, Jr.:

    Oh, I see.

    But when they came back, he didn’t say in so many words, forget everything I said to you about spite, ill will and so forth.

    The law of the case is the New York Times rule and any, as I read it, what he did was read them the actual language out of the opinions in Times, Garrison and Rosenblatt, is that right?

    Roger A. Clark:

    That’s right.

    William J. Brennan, Jr.:

    Did he — did what — did the jury then have the case on the basis, forget all about everything I said to you on spite, ill will?

    Roger A. Clark:

    If he had said that, I think that would’ve cured substantially much of the error that had taken place but he didn’t simply give the New York Times instruction, this is why I get back to this, a bit about we conceded that the allegations of blackmail were false because when he gets into the New York Times instruction at the end, he prefaces his comment with, there is no contention here that the statements regarding blackmail were true.

    So he’s really instructing the jury that we had conceded the statements were false, that meets the New York Times — would meet the New York Times, does in effect — underwrites the instruction completely.

    Byron R. White:

    Oh, no, no.

    Conceding that the allegations were false, doesn’t concede any knowledge of the falsity at the time?

    Roger A. Clark:

    Well, it — the fact that we did not contend that the articles were true meant that we conceded that this is what the instruction — that we conceded that they can — that the allegations were false.

    Now, we if —

    Byron R. White:

    You conceded that if they were given the meaning of charging a crime —

    Roger A. Clark:

    But if we concede, yes, that’s exactly right and that’s what the Court, led — I believe led the jury to believe that we had conceded that the —

    Byron R. White:

    But the judge also in defining libel, however, if the jury thought that — it was left for the jury to determine whether or not to charge you with blackmail the way it was used, was the charge deferred?

    Roger A. Clark:

    That’s right, and then he further instructed —

    Byron R. White:

    And the jury could not sign for the plaintiff unless they believe that the way blackmail was used was meant to charge a crime?

    Roger A. Clark:

    Charged a crime.

    Byron R. White:

    Yes.

    Roger A. Clark:

    Charged a crime.

    And then —

    Byron R. White:

    And then we had to believe that before they could find —

    Roger A. Clark:

    That’s right but then he gives —

    Byron R. White:

    Under these instructions.

    Roger A. Clark:

    He gives them the further instruction that we conceded that, that we conceded that the allegations were not true, that Bresler was guilty of blackmail.

    So —

    Byron R. White:

    You do, don’t you?

    Roger A. Clark:

    No, I don’t concede the —

    Byron R. White:

    Well, you do if they have — if — let’s assume that the judge ruled as a matter of law that these words charged a crime, you disagree with that but let’s assume that he ruled that way.

    But then he asked if you concede that the so construed, those words were false, you would concede it?

    Roger A. Clark:

    I would concede that, but I wouldn’t concede that the allegations in the article are false and I think that was misleading to the jury.

    What’s lacking here obviously is an instruction, that clear instruction that the defendant, that the defendants not only charged this but that they knew they were charging, that they intended to charge this strained and really ludicrous meaning that they knew it, they knew it was false.

    William J. Brennan, Jr.:

    Well, may I ask this?

    I gather from what you said to me earlier.

    After the New York Times charge was given, the correct one, Mr. Clark, that was trial counsel I gather for the —

    Roger A. Clark:

    That’s right.

    William J. Brennan, Jr.:

    — said that he still objected in view of the prior instructions that have gone before this in which malice is averted to as involving hostility that this should be made clear to the jury that evidence of evil motive, ill will, hostility does not constitute malice within the definition of the Constitution.

    I gather even had that been given, you’d still be here, is that right?

    Roger A. Clark:

    Yes, I certainly would still be here because I don’t think the evidence is sufficient to allow a jury to make that finding.

    I think for a jury to find that this article charge was the crime of blackmail —

    William J. Brennan, Jr.:

    Well, do you think there is any issue whether this is a case involving the Times test, in that event?

    Roger A. Clark:

    I think that’s very clear that this is the —

    William J. Brennan, Jr.:

    [Voice Overlap] a public figure —

    Roger A. Clark:

    That he is a public figure.

    Not only did he concede that he was a public figure but there was previous widespread publicity in the Washington Post and other metropolitan papers about his — the magnitude and importance of his duties.

    There are vast private developments planned in 25-year-old community lauding Mr. Bresler’s activities and the scope and magnitude of those activities.

    William J. Brennan, Jr.:

    Well, was any — did Mr. Bresler take the position at trial at any time that he was not a public figure?

    Roger A. Clark:

    No, in fact his counsel conceded it in his opening statement and the articles went to — the blackmail articles went to a public issue that he raised the issue with the city council by making a proposal to it.

    William J. Brennan, Jr.:

    Well, apparently the Maryland Court of Appeals had some question about it because it did say to treat the case as a Times case was more favorable to your client than what’s he entitled to on the record?

    Roger A. Clark:

    Well, I don’t think the [Voice Overlap] —

    William J. Brennan, Jr.:

    That’s what the Court of Appeals said wasn’t it?

    Roger A. Clark:

    That’s what the Court of Appeals said and I don’t think there is any substance but I don’t think they were looking to the fact that his public official capacity only [Voice Overlap] —

    William J. Brennan, Jr.:

    In any event, you can see we have to be satisfied he’s at least a public figure before we have any question before us at all?

    Roger A. Clark:

    That’s right and I think that the citizens of Greenbelt had as much interest in this zoning proposal which affected how a large proportions of their community was going to be developed as much interest certainly as the general public had in Wally Butts’ college football experience.

    The only other reference —

    Byron R. White:

    Well the Court did end up saying that you can only find for the plaintiff if you find knowing falsity or reckless disregard, you can only find for the plaintiff if you find that?

    Roger A. Clark:

    Preference to — by the — reference to the fact that we conceded the statements were false —

    Byron R. White:

    But he ended up by saying it wouldn’t be enough to find hostility.

    Roger A. Clark:

    In a very lengthy and confused instruction that you could recover on other basis.

    The other thing quickly is the skullduggery comment.

    The skullduggery comment is a rather a novel theory. There is no — it doesn’t refer to Bresler.

    There’s no indication that the — it — the condensation of the skullduggery word, the condensation was inaccurate.

    There’s no indication of the underlying comments were inaccurate.

    All it was, was criticism of the school board in delaying the condemnation actually but —

    Byron R. White:

    But do you think skullduggery is a libelous word?

    Now let’s just assume why if that — you say that so and so is guilty of skullduggery?

    Roger A. Clark:

    I don’t think it’s certainly a very serious —

    Byron R. White:

    Well, I know but is it or isn’t it?

    Roger A. Clark:

    I would have to say no.

    Certainly when it’s directed to a public body, an impersonal reference to an official action by a public body as we had in the Rosenblatt case, I would have to say that —

    Byron R. White:

    [Voice Overlap] free, a newspaper is completely free to charge anybody it wants to, private citizen or not with skullduggery?

    Roger A. Clark:

    Well, I don’t have to —

    Byron R. White:

    It’s just not the kind [Voice Overlap] —

    Roger A. Clark:

    I don’t have to reach that in this case Mr. Justice White because they didn’t charge a private citizen, they charged the school board.

    Byron R. White:

    I know but that is — wouldn’t make it as far as being libelous is concerned?

    Wouldn’t make any difference whether it’s a private citizen or public figure as to whether or not it satisfies the definition of libel?

    Roger A. Clark:

    In the context of what was involved, in other words, the postponement of a condemnation action by an official governmental body, I don’t believe that that arises to be stature of a libelous statement under the Constitution.

    Warren E. Burger:

    Is it your point that this was a group libel in effect by addressing the term skullduggery to the conduct of the entire board, not any one person?

    Roger A. Clark:

    That certainly is my point and also there is just no showing it’s false.

    Warren E. Burger:

    Well, before you [Voice Overlap] —

    Roger A. Clark:

    No attempt to make that.

    Warren E. Burger:

    Before you could show falsity you’d enough to have a pretty firm definition of what skullduggery is wouldn’t you, that would be hard to come by perhaps?

    Roger A. Clark:

    Thank you, Your Honor.

    Warren E. Burger:

    Thank you for your submission.

    The case is submitted.